Featured Domains

North Carolina State University, whose athletic teams are called the Wolfpack, has lost a domain name arbitration case for the domain Wolfpack.com.

The university filed the case against a company that registered the domain name in 1997. The university argued that the domain name was registered for the purpose of selling it, and used an unsolicited 2007 letter from the domain owner offering to sell the domain name as evidence.

The domain owner said he registered the domain name for a snowshoe project, and provided as evidence that he registered other Wolfpack product domains around the same time. He also argued that wolfpack is a generic term. When he eventually tried to sell it he reached out to multiple parties. Finally, he said the delay in the university bringing this case should be used against it.

The University responded to that last point by saying it sent its first demand letter to the respondent in 2002. This is, in some ways, damning to the university since it suggests it did not really feel like it had enough rights, otherwise it would have followed through in going after the domain.

A three person National Arbitration Forum panel ruled that it’s not clear the domain owner was specifically targeting the university in its registration, that there are many other companies with trademarks for “wolfpack,” and that at the end of the day the domain is a generic term with many plausible uses and reasons for registration.

I’m going to end this Friday with a post that has nothing to do with domains, except that the people it’s about are in the domain industry.

First, domain attorney and domain investor Ari Goldberger is holding a Bar Mitzvah Saturday for his son Josh. In typical Goldberger style, it will be over the top. Way over the top.

If you want to see all of the action yourself, you can watch the live webcast at joshgoldberger.com. You’ll certainly see some familiar faces in attendance.

Second, a shout out to domain investor Aron Meystedt for getting engaged last Sunday. Meystedt owns a number of high value domains. One he’s gotten a lot of press for is Symbolics.com, the oldest registered .com domain. His company is XF Investments. And yes, he owns XF.com.

The case for Yu.com was much more complicated than it should have been.

All the facts of the UDRP for Yu.com point to an slam dunk, open-and-shut victory for the respondent.

Yet getting to that determination – a win for the respondent – was apparently anything but simple.

Michael has opined a bit on the case, and I’m going to share my analysis.

First, let’s discuss how this was a dead-on-arrival case.

The complainant, Two Way NV/SA, stated that it had plans to bring to market an app with the name YU, but had not yet launched it or commenced commercialization.

Two Way had managed to get a trademark for its non-existent app, but even that was filed for and granted after the owner of Yu.com acquired the domain in 2006.

So the case was pretty simple in favor of the respondent.

But what happened after the case was filed is quiet interesting.

Two Way wanted to disqualify two of the respondent’s suggested panelists on the three person panel.

First, it wanted to disqualify The Hon Neil Anthony Brown Q.C. on the grounds that he is requested by the defendant’s attorney, Ari Goldberger, in a number of cases. Two Way argued that Brown thus had an economic incentive to find in Goldberger’s favor.

It’s true that Brown hears a lot of Goldberger’s cases. It’s also true that Brown takes a reading of the UDRP that, on balance, leans more toward respondents than many other panelists.

While I think Two Way’s request was uncalled for and should have been dismissed, that’s when things get zany: Two Way also asked to have another of the respondent’s nominees (who is unnamed) dismissed because he or she was of the same nationality as Goldberger and was an American citizen, whereas Goldberger’s law firm is in America.

If complainants could strike a panelist because they’re based in the U.S., that would certainly turn UDRP on its head!

The case continued with panelists Mark Ming-Jen Yang and Andrew F. Christie joining Brown…at least for a while.

Now, if you consider that Brown’s interpretation of UDRP leans a bit to respondents, then Christie’s leans quite a bit to complainants. Christie is the one who has tried to twist the language of the third prong of UDRP – registered AND used in bad faith – to be registered OR used in bad faith.

Panelist Yang is a bit of an unknown. He has heard about 40 cases dating back to 2003. He has found in favor of the complainant in all cases except one. The one case in favor of the respondent was a three person panel.

What happened between the three panelists over the six months the case was decided is not exactly known.

But Yang definitely wasn’t on board with the other two.

In the closing days of the Panel’s deliberations, Presiding Panelist Yang indicated that he did not wish to be associated with membership of this Panel which is issuing a majority decision, and that he had nothing more to say.

I believe this is unprecedented.

A member of a three person panel can disagree with the other two panelists. All he or she has to do is file a dissenting opinion.

But Yang literally walked away.

Further compounding the mystery is that Christie and Brown, while coming to the same ultimate decision in the case, disagreed on how to get there. Both panelists submitted their own opinions for each of the second and third prongs of the case. Thus, it would have been perfectly acceptable for Yang to submit his own detailed opinion on the case.

What should have been a simple case turned into a six month ordeal and a blemish on World Intellectual Property Organization.

Ari Goldberger’s ESQwire has helped its client PortMedia defend the domain name Altom.com in a UDRP.

One of the panelists determined that the case was reverse domain name hijacking, and his point of view is worth reading.

The domain name was registered in 2002. Although it was protected by whois privacy for much of the time, I have good reason to believe that the current registrant is the one that registered the domain name back in 2002. It underwent a name change in the interim.

The complainant wasn’t formed until 2008.

On that basis alone, the complaint fails.

While the three person panel found in favor of the respondent, it didn’t fully consider if this was reverse domain name hijacking. It appears the respondent didn’t specifically ask for a finding of RDNH.

But panelist Neil Brown, who believes panelists should consider RDNH even when not directly asked, determined that this is an example of RDNH.

Here’s what Brown had to say:

The Complainant’s case was hopeless from the beginning and should not have been brought. It may well be that the Complainant and its lawyers were not familiar with the UDRP. But even if that were the case, a cursory examination of the Policy shows that certain basic elements must be proved and if those preparing the Complaint find, as anyone familiar with the facts of this case must have deduced, that it would be impossible to prove those elements, the claim should not be brought.

There was never any prospect of proving any of the three elements in the Policy as the facts clearly do not exist to prove them and the Complainant seemed to acknowledge this by not even attempting to prove them. It did not submit that it had a registered or common law trademark or adduce any facts that, even on the most charitable interpretation, showed that it had such an entitlement. Its case on the other two elements was a series of formal assertions and reliance on the fact that the disputed domain name was for sale. It also overlooked the main point about this case which is that the disputed domain name was registered 6 years before the Complainant was incorporated, requiring that for the Respondent to be liable, even in a layman’s sense, it must have had what were referred to in Success Bank v. ZootGraphics c/o Ira Zoot, NAF Claim No. 1259918 as “psychic powers” to predict that the Complainant would be incorporated several years later.

All of this might be put down to inexperience rather than bad faith. But what has swayed me is that instead of dealing with the evidence, the Complainant chose to attack the Respondent’s bona fides and to allege, before it saw the Response and the Respondent’s version of events, that it was guilty of bad faith and that it was “predatory and parasitical”, apparently because it had registered a domain name that the Complainant, 10 years later, now wanted, but which is for sale at a price it does not want to pay.

Such allegations can always be made, but they should not be made unless there seem on reasonable grounds to be facts to support them. Moreover, those who make such allegations run the risk of an examination of their own bona fides, for allegations of bad faith made without supporting facts are themselves a form of bad faith and that is the feature that the Rules require to be in evidence before a finding of Reverse Domain Name Hijacking may be made. When it is then seen on such an examination that its own case, complete with accusations of bad faith and of other allegedly improper behaviour, is not only without merit but entirely baseless, a finding of Reverse Domain Name Hijacking is open and should be made in an appropriate case. This case, on the totality of the evidence is such a case and it is by no means a borderline one.

Kevin Ham’s Vertical Axis has won a UDRP over the domain name Detur.com with the help of domain name attorney Ari Goldberger of ESQwire.com.

The complaint was brought by Detur International B.V., a tourism company that started in Turkey. Among Detur’s complaints: that the domain name linked to travel sites and that it forwarded to snog.com, which it characterized as a site with “sexy photos”.

Vertical Axis claimed the domain name was merely a typo of the common English word “detour”.

The majority of the panel found that there wasn’t proof that the domain name was registered and used in bad faith.

However, panelist Ugur G. Yalçiner disagreed. One of the particularly head-scratching determinations by Yalçiner is that the word “detour” isn’t a generic or descriptive word.

Here’s what he had to say:

Respondent has stated in its response that it has registered and owns hundreds of domain names which solely incorporate typographical variations of English dictionary words, such as: aircondioners.com; airelines.com; alibama.com; … coupoons.com; creidtcards.com … etc.”. Those are really generic or descriptive words. But in the present case the situation is different. “Detur” is not generic or descriptive word.

Uh, yeah, detur is not generic or descriptive. But the word it’s a typo of — detour — is. That’s the point.